Solomon v. Vasquez Solomon , 251 So. 3d 244 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed June 20, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1553
Lower Tribunal No. 16-1705
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David Solomon,
Appellant,
vs.
Sofia Vasquez Solomon,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Valerie Manno
Schurr, Judge.
Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for appellant.
Cynthia J. Dienstag, P.A., and Cynthia J. Dienstag, for appellee.
Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
LAGOA, J.
David Solomon (the “husband”) appeals from a Final Judgment of
Dissolution of Marriage with Dependent or Minor Children (the “Final
Judgment”), and he raises several arguments on appeal, only one of which warrants
discussion. Because the Final Judgment does not set forth specific steps that the
husband must take in order to obtain unsupervised time sharing with his children,
we reverse and remand to the trial court for the limited purpose of setting forth
such steps, and otherwise affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The husband and Sofia Vasquez (the “wife”) were married on July 12, 2001.
The husband and wife have two minor children from the marriage. The wife filed
a petition for dissolution of marriage on January 25, 2016. With the filing of the
petition for dissolution, the wife also obtained a temporary injunction for
protection against domestic violence, which prevented the husband from having
contact with the wife and the children. The husband filed a counter-petition for
dissolution of marriage.
On April 19, 2016, the trial court entered an agreed order appointing Jerome
H. Poliacoff, Ph.D. (“Poliacoff”), to examine the parties and the children and make
recommendations pursuant to section 61.13, Florida Statutes (2016). Poliacoff
rendered his report on July 11, 2016 (the “Poliacoff Report”). Poliacoff
recommended supervised visitation between the husband and the children, which
“should begin with a goal of ending in a short time frame.” Under a section
entitled “Review and Revision,” Poliacoff recommended that the plan be reviewed
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every three months by a guardian ad litem with the stated goal of increasing access
time for the husband with the children.
The husband states that on July 13, 2016, the parties agreed to extend the
temporary injunction for a year and to amend the temporary injunction to provide
that the husband have supervised time-sharing with the children in accordance with
the Poliacoff Report. On August 15, 2016, the trial court entered an agreed order
appointing Terilee Wunderman, Ph. D., as guardian ad litem for the children.
The matter proceeded to trial on April 20, 2017. On May 3, 2017, the trial
court entered a Final Judgment, and attached to the Final Judgment were the
Poliacoff Report and a Guardian ad Litem Status Report Update dated April 13,
2017 (the “Guardian’s Status Report”). The Guardian’s Status Report
recommended that the husband continue with his individual therapy and that
“[u]nsupervised visits between [the husband and the children] should be
considered as the next step in this family’s healing process.”
Paragraph “5.C.” of the Final Judgment, entitled “Parenting Plan,” provides
in relevant part:
The Court adopts the Evaluation of Jerome H. Poliacoff,
PhD, attached as Exhibit B, and the Guardian Ad Litem
Status Report Update dated April 13, 2017, attached as
Exhibit C, as the Parenting Plan to be followed by the
parties at this time. The Father’s supervised time sharing
shall continue . . . . Terrilee Wunderman shall continue
her role as Guardian Ad Litem for the two minor children
pursuant to previous court order. Individual therapy for
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the Husband shall continue . . . . The Wife and the
children shall participate in family therapy on an as
needed basis.
On May 18, 2017, the husband filed a Motion for Rehearing and/or
Reconsideration. On June 9, 2017, the trial court denied the Motion for Rehearing
and/or Reconsideration. This appeal followed.
II. ANALYSIS
“The failure to ‘set forth any specific requirements or standards’ for the
alleviation of timesharing restrictions is error. This applies to both the prevention
of timesharing altogether and to restrictions.” Witt-Bahls v. Bahls, 193 So. 3d 35,
38 (Fla. 4th DCA 2016) (citation omitted) (quoting Ross v. Botha, 867 So. 2d 567,
571 (Fla. 4th DCA 2004)). Where a final judgment fails to set forth what steps a
parent must take in order to establish unsupervised timesharing, the final judgment
must be reversed and remanded for the trial court to identify such steps. Tzynder
v. Edelsburg, 184 So. 3d 583, 583 (Fla. 3d DCA 2016) (reversing and remanding
for the trial court to identify the necessary steps for the parent to reestablish
unsupervised timesharing with child where the final judgment restricted
timesharing to supervised contact one time per week); see also Curiale v. Curiale,
220 So. 3d 554, 555 (Fla. 2d DCA 2017); Perez v. Fay, 160 So. 3d 459, 466 (Fla.
2d DCA 2015) (finding that “the amended supplemental final judgment is legally
deficient on its face because it does not set forth what steps the Mother must take
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to regain primary residential custody and/or meaningful unsupervised time-sharing
with her daughter”). But see Dukes v. Griffin, 230 So. 3d 155, 157 (Fla. 1st DCA
2017) (stating that vesting trial courts with authority to enumerate steps to re-
modify timesharing schedules and alleviate timesharing restrictions “appears
contrary to § 61.13(3), Florida Statutes, which sets forth its own specific
requirements for modifying parenting plans, including time-sharing schedules” and
certifying conflict with Perez, 160 So. 3d 459, and Witt-Bahls, 193 So. 3d 35, and
other cases addressing the issue).
Here, the trial court adopted the Poliacoff Report and the Guardian’s Status
Report as the parenting plan in the Final Judgment. The Poliacoff Report
recommended that the supervised visitation between the husband and his children
“begin with a goal of ending in a short time frame” and that the plan be reviewed
every three months by a guardian ad litem with the stated goal of increasing access
time for the husband with the children. The Guardian’s Status Report, issued one
month before the final judgment, recommended that “[u]nsupervised visits
between [the husband and the children] should be considered as the next step in
this family’s healing process.” Each report, therefore, stated that the supervised
nature of the timesharing should not be permanent, but neither identified the steps
necessary for the father to terminate supervised timesharing. In adopting the
reports as the parenting plan, the trial court therefore failed to set forth specific
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benchmarks or identify for the husband the steps necessary to terminate the
supervised timesharing. Although a trial court is not required to set forth “every
minute detail of the steps to reestablish unsupervised timesharing[,] . . . [t]he
requirement is for the [husband] to walk out of the courtroom knowing that if [he]
satisfactorily accomplishes relatively specific tasks, [he] will be able to reestablish
unsupervised timesharing.” Witt-Bahls, 193 So. 3d at 39 (citation omitted).
We therefore reverse the Final Judgment to the extent it fails to provide the
husband with the specific steps he must undertake in order to obtain unsupervised
timesharing with his children. On remand, the trial court is instructed to amend the
Final Judgment to identify such steps. See Tzynder, 184 So. 3d at 583. The Final
Judgment is otherwise affirmed.
Affirmed in part, reversed in part, and remanded.
ROTHENBERG, C.J., and LOGUE, J., concur.
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Solomon v. Solomon
Case No. 3D17-1553
LAGOA, J., specially concurring,
I write separately to address section 61.13(3), Florida Statutes (2018).i Our
precedent in Tzynder v. Edelsburg, 184 So. 3d 583 (Fla. 3d DCA 2016), as well as
opinions from other district courts, Witt-Bahls v. Bahls, 193 So. 3d 35 (Fla. 4th
DCA 2016), and Perez v. Fay, 160 So. 3d 459 (Fla. 2d DCA 2015), require the trial
court to set forth in its final judgment or order the specific steps necessary to
reestablish unsupervised timesharing, and the trial court’s failure to include such
steps render the judgment or order legally deficient. Because we are bound by our
prior precedent, I join the majority’s opinion.
These cases, however, appear to establish a judicially created requirement
not supported by the statutory language of section 61.13(3). “‘[W]hen the
language of the statute is clear and unambiguous and conveys a clear and definite
meaning, there is no occasion for resorting to the rules of statutory interpretation
and construction; the statute must be given its plain and obvious meaning.’”
Atwater v. Kortum, 95 So. 3d 85, 90 (Fla. 2012) (quoting Holly v. Auld, 450 So.
2d 217, 219 (Fla. 1984)); see also DMB Inv. Tr. v. Islamorada, Village of Islands,
225 So. 3d 312, 317 (Fla. 3d DCA 2017) (“‘The Legislature must be understood to
mean what it has plainly expressed and this excludes construction. The Legislative
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intent being plainly expressed, so that the act read by itself or in connection with
other statutes pertaining to the same subject is clear, certain and unambiguous, the
courts have only the simple and obvious duty to enforce the law according to its
terms.’” (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.
2d 452, 454 (Fla. 1992))). “Florida courts are ‘without power to construe an
unambiguous statute in a way which would extend, modify, or limit, its express
terms or its reasonable and obvious implications. To do so would be an abrogation
of legislative power.’” Brown v. City of Vero Beach, 64 So. 3d 172, 174 (Fla. 4th
DCA 2011) (emphasis omitted) (quoting Holly, 450 So. 2d at 219).
The language of section 61.13(3) is clear and unambiguous, and sets forth
specific requirements for modifying parenting plans including time-sharing
schedules. While it is certainly understandable that a parent would want to know
the specific steps necessary to restore time-sharing with his or her child, “it is not
the prerogative of the courts to rewrite a statute,” Westphal v. City of St.
Petersburg, 194 So. 3d 311, 321 (Fla. 2016), and section 61.13(3) does not
mandate the inclusion of such steps in a trial court’s judgment or order. Because
section 61.13(3) contains no language mandating that a trial court set forth the
specific steps a parent must take in order to reestablish time-sharing with a child, I
therefore agree with the reasoning set forth in our sister court’s decision in Dukes
v. Griffin, 230 So. 3d 155 (Fla. 1st DCA 2017), and would certify conflict.
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i Section 61.13(3) states, in relevant part:
(3) For purposes of establishing or modifying parental
responsibility and creating, developing, approving, or
modifying a parenting plan, including a time-sharing
schedule, which governs each parent's relationship with
his or her minor child and the relationship between each
parent with regard to his or her minor child, the best
interest of the child shall be the primary consideration. A
determination of parental responsibility, a parenting plan,
or a time-sharing schedule may not be modified without a
showing of a substantial, material, and unanticipated
change in circumstances and a determination that the
modification is in the best interests of the child.
Determination of the best interests of the child shall be
made by evaluating all of the factors affecting the welfare
and interests of the particular minor child and the
circumstances of that family, including, but not limited
to:
(a) The demonstrated capacity and disposition of each
parent to facilitate and encourage a close and continuing
parent-child relationship, to honor the time-sharing
schedule, and to be reasonable when changes are
required.
(b) The anticipated division of parental responsibilities
after the litigation, including the extent to which parental
responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each
parent to determine, consider, and act upon the needs of
the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable,
satisfactory environment and the desirability of
maintaining continuity.
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(e) The geographic viability of the parenting plan, with
special attention paid to the needs of school-age children
and the amount of time to be spent traveling to effectuate
the parenting plan. This factor does not create a
presumption for or against relocation of either parent
with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the
child.
(i) The reasonable preference of the child, if the court
deems the child to be of sufficient intelligence,
understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and
disposition of each parent to be informed of the
circumstances of the minor child, including, but not
limited to, the child's friends, teachers, medical care
providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each
parent to provide a consistent routine for the child, such
as discipline, and daily schedules for homework, meals,
and bedtime.
(l) The demonstrated capacity of each parent to
communicate with and keep the other parent informed of
issues and activities regarding the minor child, and the
willingness of each parent to adopt a unified front on all
major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence,
child abuse, child abandonment, or child neglect,
regardless of whether a prior or pending action relating to
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those issues has been brought. If the court accepts
evidence of prior or pending actions regarding domestic
violence, sexual violence, child abuse, child
abandonment, or child neglect, the court must
specifically acknowledge in writing that such evidence
was considered when evaluating the best interests of the
child.
(n) Evidence that either parent has knowingly provided
false information to the court regarding any prior or
pending action regarding domestic violence, sexual
violence, child abuse, child abandonment, or child
neglect.
(o) The particular parenting tasks customarily performed
by each parent and the division of parental
responsibilities before the institution of litigation and
during the pending litigation, including the extent to
which parenting responsibilities were undertaken by third
parties.
(p) The demonstrated capacity and disposition of each
parent to participate and be involved in the child's school
and extracurricular activities.
(q) The demonstrated capacity and disposition of each
parent to maintain an environment for the child which is
free from substance abuse.
(r) The capacity and disposition of each parent to protect
the child from the ongoing litigation as demonstrated by
not discussing the litigation with the child, not sharing
documents or electronic media related to the litigation
with the child, and refraining from disparaging comments
about the other parent to the child.
(s) The developmental stages and needs of the child and
the demonstrated capacity and disposition of each parent
to meet the child's developmental needs.
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(t) Any other factor that is relevant to the determination of a specific
parenting plan, including the time-sharing schedule.
§ 61.13(3), Fla. Stat. (2018) (emphasis added).
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